27
MRS. LITHEBE AND Gertrude entered the house, and Mrs. Lithebe shut the door behind them.
–I have done my best to understand you, my daughter. But I do not succeed in it.
–I did no wrong.
–I did not say you did wrong. But you do not understand this house, you do not understand the people that live in it.
Gertrude stood sullenly. I do not understand it, she said.
–Then why do you speak with such people, my daughter?
–I did not know they were not decent people.
–Do you not hear the way they speak, the way they laugh? Do you not hear them laugh idly and carelessly?
–I did not know it was wrong.
–I did not say it was wrong. It is idle and careless, the way they speak and laugh. Are you not trying to be a good woman?
–I am trying.
–Then such people will not help you.
–I hear you.
–I do not like to reproach you. But your brother the umfundisi has surely suffered enough.
–He has suffered.
–Then do not make him suffer further, my daughter.
–I shall be glad to leave this place, Gertrude said. The tears came into her eyes. I do not know what to do in this place.
–It is not this place only, said Mrs. Lithebe. Even in Ndotsheni you will find those who are ready to laugh and speak carelessly.
–It is the place, said Gertrude. I have known nothing but trouble in this Johannesburg. I shall be glad to be gone.
–It will not be long before you go, for the case will finish tomorrow. But I am afraid for you, and for the umfundisi also.
–There is no need to be afraid.
–I am glad to hear it, my daughter. I am not afraid for the child, she is willing and obedient. She desires to please the umfundisi. And indeed it should be so, for she receives from him what her own father denied her.
–She can also talk carelessly.
–I am not blind, my child. But she learns otherwise, and she learns quickly. Let us finish with the matter. Someone is coming.
There was a knock at the door, and a great stout woman stood there, breathing heavily from her walk to the house. There is a bad thing in the paper, she said, I have brought it to show you. She put the paper down on the table, and showed the other women the headlines. ANOTHER MURDER TRAGEDY IN CITY. EUROPEAN HOUSEHOLDER SHOT DEAD BY NATIVE HOUSEBREAKER.
They were shocked. These were the headlines that men feared in these days. Householders feared them, and their wives feared them. All those who worked for South Africa feared them. All law-abiding black men feared them. Some people were urging the newspapers to drop the word native from their headlines, others found it hard to know what the hiding of the painful truth would do.
–It is hard thing that this should happen at this moment, said the stout woman, just when the case is to finish.
For she knew all about the case, and had gone each time with Mrs. Lithebe to the trial.
–That is a true thing that you say, said Mrs. Lithebe.
She heard the click of the gate, and threw the paper under a chair. It was Kumalo and the girl. The girl was holding his arm, for he was frail in these days. She guided him to his room, and they were hardly gone before the gate clicked again, and Msimangu entered. His eyes fell on the paper at once, and he picked it up from under the chair.
–Has he seen it? he asked.
–No, umfundisi, said the stout woman. Is it not a hard thing that this should happen at this moment?
–This judge is a great judge, said Msimangu. But it is a hard thing, as you say. He likes to read the paper. What shall we do?
–There is no paper here but the one that she has brought, said Mrs. Lithebe. But when he goes to eat at the Mission House he will see it.
–That is why I came, said Msimangu. Mother, could we not eat here tonight?
–That is a small thing to ask. There is food enough, though it is simple.
–Indeed, mother, you are always our helper.
–For what else are we born? she said.
–And after the meal we can go straight to the meeting, said Msimangu. Tomorrow will be easy, he does not read the paper on the days we go to the case. And after that it will not matter.
So they hid the newspaper. They all ate at Mrs. Lithebe’s, and after the meal they went to the meeting at the church, where a black woman spoke to them about her call to become a nun and to renounce the world, and how God had taken from her that desire which is in the nature of women.
After the meeting, when Msimangu had left, and Kumalo had gone to his room, and while the girl was making up the bed in the place where they ate and lived, Gertrude followed Mrs. Lithebe to her room.
–May I speak to you, mother?
–That is nothing to ask, my child.
She shut the door, and waited for Gertrude to speak.
–I was listening to the black sister, mother, and it came to me that perhaps I should become a nun.
Mrs. Lithebe clapped her hands, she was happy, and then solemn.
–I clap my hands not because you should do it, she said, but because you should think of it. But there is the boy.
Gertrude’s eyes filled with tears.
–Perhaps the wife of my brother would care better for him, she said. I am a weak woman, you know it. I laugh and speak carelessly. Perhaps it would help me to become a nun.
–You mean, the desire?
Gertrude hung her head. It is that I mean, she said.
Mrs. Lithebe took Gertrude’s hands in hers.
–It would be a great thing, she said. But they say it is not to be done lightly or quickly. Did she not say so?
–She said so, mother.
–Let us keep it unspoken except between us. I shall pray for you, and you shall pray also. And after a time we shall speak again. Do you think that is wise?
–That is very wise, mother.
–Then sleep well, my daughter. I do not know if this will happen. But if it happens, it will comfort the old man.
–Sleep well, mother.
Gertrude closed the door of Mrs. Lithebe’s room, and on the way to her own, moved by sudden impulse, she dropped on the floor by the bed of the girl.
–I have a feeling to become a nun, she said.
The girl sat up in her blankets.
–Au! she said, that is a hard thing.
–It is a hard thing, said Gertrude, I am not yet decided. But if it should be so, would you care for the boy?
–Indeed, the girl answered, and her face was eager. Indeed I should care for him.
–As though he were your own?
Indeed so. As though he were my own.
–And you will not talk carelessly before him?
The girl was solemn. I do not talk carelessly any more, she said.
–I too shall not talk carelessly any more, said Gertrude. Remember, it is not yet decided.
–I shall remember.
–And you must not speak of it yet. My brother would be grieved if we talked of it and decided otherwise.
–I understand you.
–Sleep well, small one.
–Sleep well.
28
THE PEOPLE STAND when the great Judge comes into the Court, they stand more solemnly today, for this is the day of the judgement. The Judge sits, and then his two assessors, and then the people; and the three accused are brought from the place under the Court.
I have given long thought and consideration to this case, says the Judge, and so have my assessors. We have listened carefully to all the evidence that has been brought forward, and have discussed it and tested it piece by piece.
And the interpreter interprets into Zulu what the Judge has said:
The accused Absalom Kumalo has not sought to deny his guilt. The defence has chosen to put the accused in the witness-box, where he has told straightforwardly and simply the story of how he shot the late Arthur Jarvis in his house at Parkwold. He has maintained further that it was not his intention to kill or even to shoot, that the weapon was brought to intimidate the servant Richard Mpiring, that he supposed the murdered man to have been elsewhere. With this evidence we must later deal, but part of it is of the gravest importance in determining the guilt of the second and third accused. The first accused states that the plan was put forward by the third accused Johannes Pafuri, and that Pafuri struck the blow that rendered unconscious the servant Mpiring. In this he is supported by Mpiring himself, who says that he recognized Pafuri by the twitching of the eyes above the mask. It is further true that he picked out Pafuri from among ten men similarly disguised, more than one of whom suffered from a tic similar to that suffered by Pafuri. But the defence has pointed out that these tics were similar and not identical, that it was difficult to find even a few men of similar build with any tic at all, and that Pafuri was well-known to Mpiring. The defence has argued that the identification would have been valid only if all ten men had been of similar build and had suffered from identical tics. We cannot accept this argument in its entirety, because it would seem to lead to the conclusion that identification is only valid when all the subjects are identical. But the partial validity of the argument is clear; a marked characteristic like a tic can lead as easily to wrong identification as to correct identification, especially when the lower half of the face is concealed. It must be accepted that identification depends on the recognition of a pattern, of a whole, and that it becomes uncertain when the pattern is partially concealed. In fact it becomes dangerous, because it would obviously be possible to conceal the unlike features, and to reveal only the like. Two people with similar scars, shall we say, are more easily confused one with the other when the area surrounding the scar is revealed, and the rest concealed. It would appear therefore that Mpiring’s identification of his assailant is not of itself sufficient proof that Pafuri was that man.
It must further be borne in mind that, although the first accused, Absalom Kumalo, stated that Pafuri was present, and that he had assaulted Mpiring, he made this statement only after the Police had questioned him as to the whereabouts of Pafuri. Did it then first occur to him to implicate Pafuri? Or was there a pre-existing connection between Pafuri and the murder? Counsel for the first accused has argued that Absalom Kumalo had been in a continuous state of fear for some days, and that once he had been arrested, no matter what name or names had been submitted to him, he would have confessed what was so heavily burdening his mind, and that it was this state of mind that led to the confession, and not the mention of Pafuri’s name. Indeed his own account of his fearful state lends colour to that supposition. But one cannot exclude the possibility that he seized upon Pafuri’s name, and said that Pafuri was one of the three, not wishing to be alone on so grave a charge. Why however should he not give the names of his real confederates, for there seems no reason to doubt Mpiring’s evidence that three men came into the kitchen? He has given a straightforward account of his own actions. Why should he then implicate two innocent men and conceal the names of two guilty men?
One must also bear in mind the strange coincidence that what is argued to be a wrong identification led to the apprehension of an associate who immediately confessed.
There is a further difficulty in this perplexing case. Neither of the other accused, nor the woman Baby Mkize, denies that all four were present at 79 Twenty-third Avenue, Alexandra, on the night following the murder. Was this again a chance meeting that caused the first accused to name both the second and third accused as his confederates? Or was it indeed the kind of meeting that he claims it to be? Was the murder discussed at this meeting? The woman Baby Mkize is a most unsatisfactory witness, and while the prosecution, and the Counsel for the defence of the first accused, demonstrated this most clearly, neither was able to produce that conclusive proof that the murder had been discussed. This woman at first lied to the Police, telling them that she had not seen the first accused for a year. She was a confused, contradictory, and frightened witness, but was this fear and its resulting confusion caused by mere presence in a Court, or by knowledge of other crimes to which she had been a party, or by the guilty knowledge that the murder was in fact discussed? That does not seem to us to have been clearly established.
The prosecution has made much of the previous association of the three accused, and indeed has made out so strong a case that further investigation is called for into the nature of that association. But previous association, even of a criminal nature, is not in itself a proof of association in the grave crime of which these three persons stand accused.
After long and thoughtful consideration, my assessors and I have come to the conclusion that the guilt of the second and third accused is not established, and they will be accordingly discharged. But I have no doubt that their previous criminal association will be exhaustively investigated.
There is a sigh in the Court. One act of this drama is over. The accused Absalom Kumalo makes no sign. He does not even look at the two who are now free. But Pafuri looks about as though he would say, this is right, this is just, what has been done.
There remains the case against the first accused. His confession has been thoroughly investigated, and where it could be tested, it has been found to be true. There seems no reason to suppose that an innocent person is confessing the commission of a crime that he did not in fact commit. His learned Counsel pleads that he should not suffer the extreme penalty, argues that he is shocked and overwhelmed and stricken by his act, commends him for his truthful and straightforward confession, draws attention to his youth and to the disastrous effect of a great and wicked city on the character of a simple tribal boy. He has dealt profoundly with the disaster that has overwhelmed our native tribal society, and has argued cogently the case of our own complicity in this disaster. But even if it be true that we have, out of fear and selfishness and thoughtlessness, wrought a destruction that we have done little to repair, even if it be true that we should be ashamed of it and do something more courageous and forthright than we are doing, there is nevertheless a law, and it is one of the most monumental achievements of this defective society that it has made a law, and has set judges to administer it, and has freed those judges from any obligation whatsoever but to administer the law. But a Judge may not trifle with the Law because the society is defective. If the law is the law of a society that some feel to be unjust, it is the law and the society that must be changed. In the meantime there is an existing law that must be administered, and it is the sacred duty of a Judge to administer it. And the fact that he is left free to administer it must be counted as righteousness in a society that may in other respects not be righteous. I am not suggesting of course that the learned Counsel for the defence for a moment contemplated that the law should not be administered. I am only pointing out that a Judge cannot, must not, dare not allow the existing defects of society to influence him to do anything but administer the law.
Under the law a man is held responsible for his deeds, except under certain circumstances which no one has suggested here to obtain. It is not for a judge otherwise to decide in how far human beings are in truth responsible; under the law they are fully responsible. Nor is it for a judge to show mercy. A higher authority, in this case the Governor-General-in-Council, may be merciful, but that is a matter for that authority. What are the facts of this case? This young man goes to a house with the intention to break in and steal. He takes with him a loaded revolver. He maintains that this was for the purpose of intimidation. Why then must it be loaded? He maintains that it was not his intention to kill. Yet one of his accomplices cruelly struck down the native servant, and one must suppose that the servant might easily have been killed. He states himself that the weapon was an iron bar, and there is surely no more cruel, no more dangerous way to do such a deed. In this plan he concurred, and when the Court questioned him, he said that he had made no protest against the taking of this murderous and dangerous weapon. It is true that the victim was a black man, and there is a school of thought which would regard such an offence as less serious when the victim is black. But no Court of Justice could countenance such a view.
The most important point to consider here is the accused’s repeated assertion that he had no intention to kill, that the coming of the white man was unexpected, and that he fired the revolver out of panic and fear. If the Court could accept this as truth, then the Court must find that the accused did not commit murder.
What again are the facts of the case? How can one suppose otherwise than that here were three murderous and dangerous young men? It is true that they did not go to the house with the express intention of killing a man. But it is true that they took with them weapons the use of which might well result in the death of any man who interfered with the carrying out of their unlawful purpose.
The law on this point has been stated by a great South African judge. “An intention to kill,” he says, “is an essential element in murder; but its existence may be inferred from the relevant circumstances. And the question is whether on the facts here proved an inference of that nature was rightly drawn. Such an intent is not confined to cases where there is a definite purpose to kill; it is also present in cases where the object is to inflict grievous bodily harm, calculated to cause death regardless of whether death results or not.”
Are we to suppose that in this small room, where in this short and tragic space of time an innocent black man is cruelly struck down and an innocent white man is shot dead, that there was no intention to inflict grievous bodily harm of this kind should the terrible need for it arise? I cannot bring myself to entertain such a supposition.
They are silent in the Court. And the Judge too is silent. There is no sound there. No one coughs or moves or sighs. The Judge speaks:
This Court finds you guilty, Absalom Kumalo, of the murder of Arthur Trevelyan Jarvis at his residence in Parkwold, on the afternoon of the eighth day of October, 1946. And this Court finds you, Matthew Kumalo, and Johannes Pafuri, not guilty, and you are accordingly discharged.
So these two go down the stairs into the place that is under the ground, and leave the other alone. He looks at them going, perhaps he is thinking, now it is I alone.
The Judge speaks again. On what grounds, he asks, can this Court make any recommendation to mercy? I have given this long and serious thought, and I cannot find any extenuating circumstances. This is a young man, but he has reached the age of manhood. He goes to a house with two companions, and they take with them two dangerous weapons, either of which can encompass the death of a man. These two weapons are used, one with serious, the other with fatal results. This Court has a solemn duty to protect society against the murderous attacks of dangerous men, whether they be old or young, and to show clearly that it will punish fitly such offenders. Therefore I can make no recommendation to mercy.
The Judge speaks to the boy.
–Have you anything to say, he asks, before I pronounce sentence?
–I have only this to say, that I killed this man, but I did not mean to kill him, only I was afraid.
They are silent in the Court, but for all that a white man calls out in a loud voice for silence. Kumalo puts his face in his hands, he has heard what it means. Jarvis sits stern and erect. The young white man looks before him and frowns fiercely. The girl sits like the child she is, her eyes are fixed on the Judge, not on her lover.
I sentence you, Absalom Kumalo, to be returned to custody, and to be hanged by the neck until you are dead. And may the Lord have mercy upon your soul.
The Judge rises, and the people rise. But not all is silent. The guilty one falls to the floor, crying and sobbing. And there is a woman wailing, and an old man crying, Tixo, Tixo. No one calls for silence, though the Judge is not quite gone. For who can stop the heart from breaking?
They come out of the Court, the white on one side, the black on the other, according to the custom. But the young white man breaks the custom, and he and Msimangu help the old and broken man, one on each side of him. It is not often that such a custom is broken. It is only when there is a deep experience that such a custom is broken. The young man’s brow is set, and he looks fiercely before him. That is partly because it is a deep experience, and partly because of the custom that is being broken. For such a thing is not lightly done.